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The Pinterest Grenade

I’ve been seeing a lot of chatter about Pinterest from my online friends as of late. I had held off looking at the website until recently. Given all of my writing about terms of service and other agreements, I thought it was fitting to start my examination by taking a gander at their policies. In reading over their terms of use, I thought it was a bit sketchy in its details and assignments.

It turns out I’m not the only one. This piece in The Atlantic Wire notes that the copyright agreement on the website puts the burden (and the monetary expenses) on the end user for any legal actions. Furthermore, the end user is responsible for any legal fees that Cold Brew (the company that owns Pinterest) generates defending itself from the action taken against you. A double financial whammy. This blog post outlines all of the potential copyright pitfalls and their consequences that could be generated from pinning images on the service.

Beyond copyright, there was one line that raised an eyebrow for me when I read. It’s the highlighted portion from the screenshot below.

All I could think of is “By whose standards?” I’ll concede on the defamatory term and throw in the pornographic term as well for good measure. But obscene, vulgar, and offensive? We can dance around the first two as to what they mean, but it’s the last one that really takes the cake for me. Offensive is such a vague word and used in a remarkable cover-our-asses sort of way. Given the nature of our society to remove rather than ignore offensive content, it seems like a magical trump card that could be wielded against anyone at anytime under the guise that they are offended by it.

Given that you could be sued if you stray from your own work or have it taken down on subjective whim, that doesn’t sounds like a fun community to me. Although, given that it is a fast growing community, perhaps it is more of a lesson as to how people feel about copyright in the digital age.

Edit: I just re-read the second term in the screenshotted paragraph. It makes me wonder whose laws are being applied since there are limits on expression in other countries. That sounds like a legal minefield to me.

I do agree that it’s pretty vague, but that’s fairly common wording for policies and legal documents – I’ve just used it in a document and have seen it in many legally vetted ones, especially in IT acceptable use policies. It IS there to cover them, but it’s not designed to open up frivolous lawsuits (not saying it can’t, just that it is commonly used). My gut feeling is that other copyright issues with Pinterest are the ones we should be concerned about!

I think it’s a healthy reminder that “free” online is not necessarily free. Nor is it free of restrictions as it is a service that people opt into. I would have hoped that they would be more robust about defending people’s right of expression, but I guess that’s not in their financial cards.

So I’m not going to speak to the liability-shifting part. But if you’re running a web site with user-generated content, you pretty much HAVE to put the copyright onus on users. If it’s on you, you have to have a system for vetting every single piece of content that gets posted — and that’s impossible. I mean, literally impossible. Think of how much stuff gets pinned to Pinterest (or uploaded to YouTube, or whatever) each day. These sites simply don’t exist unless they shift the burden of copyright compliance to users, because they don’t scale. And because they don’t even bother going into business in the first place, because the liability risk is too staggering.

IANAL (though I HAVE spent an awful lot of time reading web site ToS and thinking about copyright, given where I work). But my understanding of the DMCA is that, as a site with user-generated content, you have a liability safe harbor ONLY if you are not policing (i.e. assuming responsibility for) your users’ uploads. You have a duty to investigate complaints and remove infringing material, but you essentially have a legal requirement NOT to assume responsibility, unless you want to expose yourself to more liability than you can even imagine shaking a stick at.

I think you would find, if you read other sites’ ToS, some pretty similar provisions; it’s just that people notice Pinterest because it’s the new hotness.

“Without limiting any of those representations or warranties, Automattic has the right (though not the obligation) to, in Automattic’s sole discretion (i) refuse or remove any content that, in Automattic’s reasonable opinion, violates any Automattic policy or is in any way harmful or objectionable, or (ii) terminate or deny access to and use of the Website to any individual or entity for any reason, in Automattic’s sole discretion. Automattic will have no obligation to provide a refund of any amounts previously paid.”

Same kind of waiver of financial liability, too. “Indemnification. You agree to indemnify and hold harmless Automattic, its contractors, and its licensors, and their respective directors, officers, employees and agents from and against any and all claims and expenses, including attorneys’ fees, arising out of your use of the Website, including but not limited to your violation of this Agreement.”

Andromeda is completely correct. The reason Pinterest is getting a lot of attention for this is because the nature of their service lends itself to copyright violation — a lot of people won’t think about whether or not a picture is copyrighted before they pin it. IANAL so I won’t conjecture as to whether or not Pinterest is more at risk, legally, given the nature of the service they provide. But the terms are really standard and not onerous, IMHO.